Chancel Repair Liability – Revision Notes

Following media interest earlier this week, we thought that it would be useful to re-iterate some of the information relating to Chancel Repair Liability, (CRL), from the earlier post which outlined the position after the expiry of the midnight deadline for registration 12 October 2013.  There have been no new legal developments (or apparently any claims) regarding CRL since that date, but in the slack news period over the Christmas/New Year break, a number of newspapers based their stories on FoI requests earlier in the year to the Land Registry.  The Daily Mail reports

“247 churches have so far registered 12,276 homes or plots of land as being liable. Letters informing the owners have been sent out by the Land Registry, which manages the list, the Sunday Times reported yesterday. However as many as 5,000 parish churches have yet to register their rights, meaning the final total could be significantly higher.”

The figure relating to the number of titles affected supported by exchanges with Land Registry, here, and a subsequent response, here, indicated that at 4 November 2013 there had been 3,609 entries of titles affected by chancel repair between 2002 and 12 October 2013 (with a further 8 since then).

A useful analysis of these recent reports has been made Greg Yerbury, here.

Comment

Although the origins of CRL date back to the time of Henry VIII, the provisions under which it is enforced are relatively recent. Until 1932, enforcement proceedings took place in the ecclesiastical courts, but the UK Government brought in the Chancel Repair Act 1932 whereby jurisdiction passed to the secular courts and responsibility for its enforcement was placed on the PCC of the parish concerned [1]. There have been attempts at phasing out CRL: in February 1982, the General Synod of the Church of England overwhelmingly supported a motion approving a phasing out of chancel repair liability; and in 1985, the Law Commission published a paper on its reform, recommending phasing it out over a 10-year period.

The Church of England helpfully summarizes the post 12 October position:

– If the liability is not registered by 2013, liability is still enforceable against the then owner of the relevant land until he or she disposes of the land. It is only a successor in title who is freed from the unregistered liability;

– As long as liability is registered by 2013, then all future owners of the relevant land are liable for their due share (unless they compound the liability as provided for under the Ecclesiastical Dilapidations Measure 1923);

– Liability registration can still be achieved after October 2013 but it will only be effective in continuing chancel repair liability if there has been no sale of the subject land since October 2013. Also, the Land Registry will charge a fee [for applications after 11 October 2013].

An important caveat is that in terms of “new owners” it is possible that where property changes hands “without valuable consideration”, i.e. where no money or a nominal sum is handed over, such as under the terms of a Will, the land may still have a Chancel Repair Liability past the cut-off date.

With regard to the statement that “as many as 5,000 parish churches have yet to register their rights”, this appears to be based upon CofE estimates of the number of parishes subject to CRL. There is no central Church of England register of parishes where Chancel Repair Liability may exist, but recent estimates suggest a figure of 5,200 parishes, involving 3,780,500 acres of land.  Of this the Church Commissioners, Ecclesiastical Corporations such as Deans and Chapters of Cathedrals, Oxford, Cambridge and Durham Universities and their constituent colleges, Winchester College and Eton College are estimated to have responsibility for about 1,200 chancels.

In conclusion, whilst some might regard some of the media reports as scaremongering, Chancel Repair Liability remains an issue for existing owners, properties that have been registered by the PCC, and where ownership has changed “without valuable consideration”. As the Law Society noted  on 16 December 2013 “Chancel repair liability still an issue for conveyancers[2]. A further area of concern is the extent to which this liability is “joint and several””[3].

And see the comments of Greg Yerbury and Michael Hall, below.


[1] The Act does not apply to the Channel Islands or the Isle of Man.

[2] This article incorrectly states that midnight on 13 October 2013 was the threshold for the provisions on registration.

[3] See paragraph 13 and footnotes 10 & 11 of the Church of England Opinion of the Church of England Advisory Commission on Chancel Repair Liability.


At L&RUK we do not give legal advice, or purport to do so. This post summarizes the issues relating to Chancel Repair Liability at the time of writing. For specific queries on the application of this and related legislation, professional advice should be sought.

Cite this article as: David Pocklington, "Chancel Repair Liability – Revision Notes" in Law & Religion UK, 2 January 2014, https://lawandreligionuk.com/2014/01/02/chancel-repair-liability-revision-notes/

20 thoughts on “Chancel Repair Liability – Revision Notes

  1. Thank you for this. I am not sure whether the estimated acreage of land affected assumes that all land in a parish where there is CRL is affected.
    It works at at over one square mile per parish on average,

    Normally the land affected in any one parish is quite a small proportion of the whole area of titheable fields as it is only the land of the tithe owner in which merger could take place.

    As regards land allotted to a lay rector in lieu of tithe under an enclosure award, people seem to have assumed land is still held ‘in lieu of tithe’. If it is not, there is no liability. As tithes have been abolished, there is no longer any such legal concept as tithe, so I suggest, no land is now held in lieu of tithe and anyone sued as the owner of land allotted in lieu of tithe would have a defence to the claim. .

    So few parishes have registered their claims it is clear that most PCCs accept that CRL is an anachronism, and that claims against parishioners damage the relationship between the Church and the community and hinder the Church’s mission. Therefore I hope the opportunity will now be taken to raise this in the General Synod. There are also changes at the Ministry of Justice which may help. There will no doubt be disputed land registration cases dealt with by the First Tier Tribunal Property Chamber Land Registration Division. .

    • Michael
      Thank you for this valuable additional information, which with that in Greg Yerbury’s comments, illustrates the range of issues to be addressed when considering CRL, and the problems faced by a PCC.
      David

  2. Dear Michael

    Land which was acquired in lieu of tithe by a lay Rector still has the liability indeed that was a key part of the Aston Cantlow case and the equally as important Chivers and air ministry case. this held that land when given in lieu of tithe but became lay rectorial property which does still exist and so I do not think case law supports your argument.

    Under Section 1 of the 1839 Tithe Act, land which was merged with Tithe also bears the liability since it has never been rescinded and so in some respects Tithe does exist.

    Having looked at a lot of Tithe maps in some parishes there are 1000s of acres of land bearing the liability whilst in others none. What is noticeable is that there are lot of parishes where the tithe owner sold the tithes on to the land owner and so merger of land and tithe rent charge is more common than may be supposed.

  3. Dear Greg

    I agree that existing case law does not support my argument, but the argument has not been made or rejected in any case, so it is open to the Courts to consider the argument. In Aston Cantlow the only issue that the House of Lords decided was the human rights argument. I spoke to the QC who appeared for the Wallbanks and he said he had been given instructions late and he was only instructed to put forward the human rights point that had been accepted in the Court of Appeal. Lord Scott of Foscote pointed out that whether Wickhambrook PCC v Croxford was wrongly decided was an open question, i.e whether the CRL is only payable out of the profits of the rectory and what ‘liable to be admonished’ means. Similarly in the Chivers v Air Ministry case both parties accepted that the land was held in lieu of tithe and so was subject to CRL.The point was not argued. I would recommend a blog by Philip Jones http://ecclesiasticallaw.wordpress.com/tag/aston-cantlow-pcc-v-wallbank/
    which makes similar points to those in my blog http://michaeljameshall.wordpress.com. and my submission to the Ministry of Justice and the Law Commission which you can find there.

    Whether land continues to be held in lieu of tithe can be affected by lapse of time and abandonment of claims. For example if for many decades the PCC has repaired the chancel and not called on the lay rectors, just as for example a mortgage lender who does not collect any interest on the debt for 12 years or more loses his rights, and a landowner who allows a farmer to graze horses on his land and never collects any rent, loses his title, so a PCC can lose its claim over rectorial property. The common law is constantly developing to meet changing times. CRL is based on a supposed general ‘custom of the realm’, and local customs may differ from that.

    Anyone who has a unilateral notice of CRL registered on his title should get legal advice and challenge the unfairness of this arbitary impost.

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  5. Dear Michael
    Personally I believe the issue of the liability of being personal and several should have been questioned by the Wallbank lawyers particularly as they only had part of the land that had become part of the Rectory.
    What I have found in the 7 situations I have assisted is that the PCC’s have simply registered either the wrong land (even after taking legal advice), or for a variety of reasons the liability was not enforceable. I think the issue is with legal advice it seems that few people understand CRL and even fewer have spent time reading an enclosure awards and so taking legal advice from any solicitor may well not be that helpful in the first place for both land owner and PCC.

    If I was going back to 2003 I would have suggested that the Government offered every PCC who could prove that they have a land based liability that is collectable offered them a £1,000 here and now and a 30 year fast track through the lottery fund for chancel repairs only in lieu of CRL and ask them to agree to a deed of relinquishment (or something). The others are free to register if they wish to but I know PCC’s which option the vast majority would have chosen.

    I am guessing, after looking at a number of enclosure and tithe awards, that the amount of parishes who actually have a liability that is provable and not overly complex and actually worth while purely on a financial basis to pursue would be probably be around 800. This is based that I have counted and found 605 enclosure awards with plans that have the liability according to the House of Commons papers. The House of Commons papers do not include every enclosure award and sometimes the enclosure commission did not do what they were expected to do and some of those 605 plans will be useless. Enclosure awards only cover some of the sources of liability but they are probably the easiest to prove.

    The vast majority of liabilities are something like 300 plots with 30% liability and possibly including a dodgy tithe map that can’t be transposed. Enclosure award based liabilities sometimes fail because there are now so many owners of the land including members of the PCC or the award forgets to mention which land is given in lieu of tithe anyway..

    If I was registered with the liability my first stage would be to issue a UN4 and if I agreed with the liability then to offer to compound it on the basis that compounding is legally possible on part of a liability. We know that Aston Cantlow was compounded for £36,500 for one chancel then if I owned 1 acre of 100 acre enclosure award I would offer the Diocesan board of Finance £400 to compound it. this would be vastly cheaper than fighting it.
    On another front I think it is wrong that a PCC’s are able to use a UN1 they should have been compelled to provide the evidence up front and that may well have saved a lot of grief.

    • “I would have suggested that the Government offered every PCC who could prove that they have a land based liability that is collectable offered them a £1,000 here and now and a 30 year fast track through the lottery fund for chancel repairs ”

      That probably would have been much cheaper than having the Land Registry process all of those UN1 applications.

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  7. CRL is obsolete and unfair. The law needs to change, as concluded by Law Com. 152.

    In the meantime, the presumed legal basis of CRL is flimsy and complex and it desperately needs to be challenged in Court. CRL was extinguished when land was exchanged in lieu of tithes. The assumption that CRL was transferred to the land is unsound. At most, it could be argued that the personal liability could be transferred to the landowner at that time, but not attached to the land and not implicitly binding any successor in title. Furthermore, tithes cannot be transferred without an explicit deed, therefore neither can CRL because it arises from tithes. Henry VIII had no legal right whatsoever to give these lands, and hence the right to claim CRL, to the Church of England. Any existing tithe rights therefore belong to the Catholic Church.

    There is a popular misconception that the case for CRL is strong because of the famous Wallbank test case, but that case was very badly defended relying entirely and erroneously on Human Rights law and the family ran out of money before the end and had to represent themselves. In the judgement, the judges helpfully set out numerous ways they could have challenged CRL but did not do so, and raised some fundamental questions about the alleged liability. It was a missed opportunity..

    • On a parliamentary time issue it is going to fail. I am hoping to see if there is any financial assessment of the impact of the bill which I imagine would be quite significant.
      I think the principal purpose of the bill is mostly about grabbing media attention and getting the central church authorities to think about this issue

  8. Greg

    As you have yourself worked out the number of cases in which there is an actual collectable CRL (other than claims against the Church Commissioners and the bodies that received compensation stock under s. 31 (2) Tithe Act 1936) is extremely limited and the amount already spent on lawyers registering these dodgy claims must far exceed the actual payments collected (if any).

    I feel quite sure that Lord Avebury’s Bill will get a second reading and will be debated with interest and at least it should receive the support of the Bishops, as it was they and other members of the Synod who voted through with little opposition the 1982 resolution which Lord Avebury is seeking to give effect to, and that resolution has never been debated further or revoked. The Synod Committee which reported on the issue itself decided that Parliament and not the Synod should take the decision and so it would be bizarre if the Church opposed this long overdue reform, which it itself initiated. There is no reason why the Synod should not debate this and pass a Measure, I hope it will as It would be much better for the Syond to do so as it is better informed than Parliament on the issue.

    As regards section 31(2) liabilities I am sure the Church Commissioners will support the Bill as it will relieve them of liabilities and also the Cathedrals such as Hereford which carry heavy liabilities. Of course I am sure the Church Commissioners and the Cathedrals etc, if they so wish, will continue to donate money to parishes for repairs their churches including the nave and the tower as well as the chancel, and they will do so on a more logical basis than historical accident. There is no good reason why only certain parish churches should receive such donations and only for the chancel and not the rest of the church.

    It is the members of the Houses of Parliament that pass laws and not the Government and it will not be the first time that a Private Member’s Bill has passed into law. This reform has a great deal of support in the country from the many members who have asked questions over the years of the Church Estate Commissioners in the House of Commons, always answered in a dismissive manner. This is not a matter for the Church Commissioners, as is often said, it is a matter for the people to decide through their elected representatives whether they wish the law always to remain in its present iniquitous state, or be open to amendment of life.

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  11. I’ve recently had an FOIA question to the Land Registry here.

    It includes that as at 18 August 2015 “179 Parochial Church Councils have made applications relating to Chancel Repair Liability.”.

    On the moot point as to what is CRL I’ve recently come across this:

    The Law Commission 1989 (LAW COM. No. 158) PROPERTY LAW
    THIRD REPORT ON LAND REGISTRATION

    Chancel repairs liability
    2.81 Liability to repair the chancel of any church is at present listed as an overriding interest [See L.R.A. I925, s. 70(1)(a)]. We have recently submitted a report [(1985) Law Com. No. 152.] on this topic which primarily recommended abolition of the liability after ten years but which included an alternative recommendation involving registration and apportionment. That report examined the present law and the nature of a landowner’s liability for chancel repairs. We incidentally stated that the liability is not a charge on the land so that it is arguable that the liability should not have been listed as an overriding interest [Ibid., paras. 2.5, 2.6 and n. 9.]. Accordingly for present purposes, pending implementation of the earlier report, we recommend that chancel repair liability should continue to subsist as another general burden, like liability for rates, and should no longer be regarded as an overriding interest in land.

    Don’t I recall the Compulsory Church Rate Abolition Act 1868? Time for one on CRL.

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